Cite as Mack v. U.S., 856 F.Supp. 1372 (D.Ariz. 1994)
Sheriff Richard Mack, Plaintiff,
v.
United States of America, Defendant.
No. CV 94-113 TUC JMR.
United States District Court, D. Arizona.
June 29, 1994.
Stephen P. Halbrook, Fairfax, VA and David T. Hardy, Tucson,
AZ, for plaintiff.
Frank W. Hunger, Asst. Atty. Gen., Janet Napolitano, U.S.
Atty., Don B. Overall, Asst. U.S. Atty., Tucson, AZ and Dennis G.
Linder, Sandra M. Schraibman, Michael Sitcov, Pamela J. Eppli,
Robert Van Kirk, Dept. of Justice, Civ. Div., Washington, DC, for
defendant.
Grant Woods, Atty. Gen., Rebecca White Berch, Sol. Gen.,
Thomas J. Dennis, Asst. Atty. Gen., Phoenix, AZ, for the State of
Ariz.
ORDER & MEMORANDUM DECISION
ROLL, District Judge.
INTRODUCTION
Pending before the Court is plaintiff Graham County Sheriff
Richard Mack's complaint for injunctive and declaratory relief
against the enforcement of 18 U.S.C. section 922(s), commonly
referred to as the Brady Act. For the reasons set forth below, the
Court finds that subsection 922(s)(2) violates the Fifth and Tenth
Amendments of the United States Constitution and will enter partial
judgment in favor of the plaintiff on that basis.
The Brady Act
This lawsuit is a challenge to the constitutionality of public
law 103-159, 107 Stat. 1536 (1993), codified at 18 U.S.C. section
922(s), which amends the Gun Control Act of 1968. [footnote 1] The
statute, popularly known as the Brady Act, provides for a waiting
period of five business days for purchases of handguns from
federally-licensed gun dealers. 18 U.S.C. section 922(s)(1)(A)(ii).
During that waiting period, the "chief law enforcement officer"
("CLEO") in each jurisdiction is required to "make a reasonable
effort to ascertain ... whether receipt or possession [of a handgun
by the prospective buyer] would be in violation of the law,
including research in whatever State and local recordkeeping
systems are available and in a national system designated by the
Attorney General." 18 U.S.C. section 922(s)(2). The CLEO is defined
as "the chief of police, the sheriff, or an equivalent officer or
the designee of any such individual." 18 U.S.C. section 922(s)(8).
The CLEO performs the check on the basis of a sworn statement that
the prospective purchaser provides to the gun dealer and that the
gun dealer in turn provides to the CLEO. The CLEO must destroy the
sworn statement within 20 days of the date of the transfer unless
the CLEO determines that the transfer would violate the law. 18
U.S.C. section 922(s)(6)(B). If the CLEO determines that the
transfer would violate the law, the CLEO must, within 20 days of a
request, provide reasons to the denied purchaser for that
determination. 18 U.S.C. section 922(s)(6)(C).
The Brady Act also amends the penalty provision of the
existing criminal code by providing that anyone who knowingly
violates its provisions shall be subject to a fine, imprisonment,
or both. 18 U.S.C. section 924(a)(5). CLEOs are specifically
exempted from civil liability. 18 U.S.C. section 922(s)(7). It is
the position of the Department of Justice that criminal sanctions
shall not attach to any CLEO who violates any provision of the
Brady Act. The Act does not so indicate, however.
The interim procedure outlined above is slated to be replaced
by a national instant criminal background check system to be
developed and maintained by the Department of Justice within five
years from the date of enactment. 18 U.S.C. section 922(t)(1). The
national system will consist of a computerized database of
information gathered from both federal and state criminal records
and will be accessible telephonically by federally-licensed gun
dealers. Once the national data bank is operational, the duties of
the CLEO will cease.
Plaintiff Richard Mack is the sheriff of Graham County. As
such, he is the chief law enforcement officer of that jurisdiction.
Graham County is a sparsely populated rural county of 4500 square
miles inhabited by 28,000 residents. The Graham County Sheriffs
Office is responsible for law enforcement in the county and
consists of a staff of twelve officers, including the sheriff.
Mack has been advised by the Graham County Attorney that he is
to enforce the provisions of the Brady Act until a court of
competent jurisdiction rules otherwise. Mack alleges that the Brady
Act will require him to search nine categories of records, these
categories having varying degrees of accessibility. Mack maintains
that his responsibilities under state law do not include conducting
the type of investigations the Act mandates, and that he does not
have the personnel or funds to do so. [footnote 2] He claims that
his refusal to perform the duties imposed upon him by the Brady Act
would subject him to criminal penalties.
Plaintiff Mack seeks a declaration that 18 U.S.C. section
922(s) is unconstitutional as beyond the powers delegated to
Congress in Article 1, section 8 of the United States Constitution,
contravenes the Tenth and Thirteenth Amendments, and is
unconstitutionally vague in violation of the Due Process Clause of
the Fifth Amendment. Mack asks the Court to enter a permanent
injunction against enforcement of the Brady Act.
Upon suggestion of counsel, the Court previously agreed to
consolidate Mack's motion for preliminary injunction with his
complaint for permanent relief. Also before the Court is defendant
United States of America's motion to dismiss, which the parties
have agreed may be ruled upon as well. In essence, these procedural
mechanisms permit the Court to reach the merits of the case at this
time. For the reasons set forth below, the Court finds section
922(s)(2), the provision of the Brady Act that requires local law
enforcement officials to conduct a reasonable background search,
exceeds Congress's Article I powers in violation of the Tenth
Amendment. Additionally, that provision, enforceable by way of
criminal sanctions, is unconstitutionally vague in violation of the
Due Process Clause of the Fifth Amendment. However, the Court finds
this sole offending provision to be severable from the balance of
the Act, which survives judicial scrutiny.
DISCUSSION
Sheriff Mack's Standing to Sue
The first question posed by defendant United States of America
is whether this plaintiff has standing to sue. The jurisdiction of
the federal courts is limited by Article III, section 2 of the
Constitution to adjudication of "cases or controversies." U.S.
Const. art. III, section 2. "In essence the question of standing is
whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues. Warth v. Seldin, 422
U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). To
satisfy the core constitutional requirements for standing, a
plaintiff must demonstrate that he or she has suffered, or is in
imminent danger of suffering, a distinct and palpable personal
injury fairly traceable to the defendant's allegedly unlawful
conduct and such injury is likely to be redressed by the requested
relief. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324,
82 L.Ed.2d 556 (1984). A citizen's belief that the government is
violating the Constitution does not constitute sufficient personal
injury to satisfy the Article III standing requirements. Lujan v.
Defenders of Wildlife, -- U.S. --, --, 112 S.Ct. 2130, 2143-44, 119
L.Ed.2d 351 (1992).
In order to reach these claims, the Court must first determine
whether the criminal penalty provisions of the Brady Act apply to
Sheriff Mack. As recited above, the Brady Act amends the penalty
provision of the existing criminal code by providing that
"[w]hoever knowingly violates subsection (s) or (t) of section 922
shall be fined not more than $1000.00, imprisoned for not more than
1 year, or both." 18 U.S.C. section 924(a)(5). Focusing on the word
"whoever," the Court finds that Mack is unequivocally at risk of
criminal sanctions should he decide to disobey the statute.
The United States disputes this interpretation and cites a
Bureau of Alcohol Tobacco and Firearm's "Open Letter" to state and
local law enforcement officials explaining the operation of the
Brady Act. The Bureau of Alcohol, Tobacco, and Firearms is the
federal agency responsible for implementing the Act. The Bureau
interprets the mandatory provisions of the Act as merely requiring
"some minimal effort to check commonly available records."
Moreover, the letter states that it will be left to the discretion
of the CLEO to establish enforcement standards based upon the
jurisdiction's resources which, depending on the area, could
entirely negate the research obligation. The Assistant Attorney
General for the Office of Legal Counsel has officially opined that
the penalties section of the Act do not apply to chief law
enforcement officers.
An agency's interpretation of a statute it administers is
entitled to deference only when the statute is silent or ambiguous
on the issue presented. [footnote 3] In determining whether
Congress has "an intention on the precise question at issue," this
Court employs "traditional tools of statutory construction."
Chevron, U.S.A. v. NRDC, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778,
2782 n. 9, 81 L.Ed.2d 694 (1984). In so doing, however, it should
be emphasized that courts are the final authorities on issues of
statutory construction. INS v. Cardoza-Fonseca, 480 U.S. 421, 447,
107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); Natural Resources
Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir. 1987).
Moreover, it is "unclear whether an agency's interpretation of a
criminal statute is entitled to deference under Chevron." United
States v. Douglas, 974 F.2d 1046, 1048 n. 1 (1992) (emphasis in
original).
It is basic that "as long as the statutory scheme is coherent
and consistent, there is generally no need for a court to inquire
beyond the plain language of the statute." United States v. Ron
Pair Enterprises, Inc., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 1029-
31, 103 L.Ed.2d 290 (1989). The relevant provision of the Brady Act
imposes liability upon those who knowingly violate its terms.
[footnote 4] Although the term "whoever" is not defined under the
statute, it does not demand further articulation. [footnote 5]
Under the plain meaning of the statute, Mack is under threat
of criminal penalties and thus possesses an injury that can be
redressed. The agency's interpretation to the contrary is entitled
to no deference. [footnote 6]
The United States asks the Court to additionally consider
whether Mack is entitled to bring suit in his official capacity,
assuming that he can allege no injury as a private entity. See
Karcher v. May, 484 U.S. 72, 78, 108 S.Ct. 388, 391, 98 L.Ed.2d 327
(1987) (appellant state legislators who participated in lawsuit in
their official capacities lacked standing to appeal on behalf of
legislature when term of office expired); Bender v. Williamsport
Area School District, 475 U.S. 534, 544, 106 S.Ct. 1326, 1333, 89
L.Ed.2d 501 (1986) (plaintiff school board member had "no personal
stake in the outcome of the litigation" and therefore did not have
standing to file a notice of appeal). Mack's duties under state law
are set out in A.R.S. section 11-441. [footnote 7] Mack has
additional practical responsibilities that ensue from his
management of his staff and office. Mack has sworn under oath to
uphold his duties as sheriff. He has brought this lawsuit
identifying himself as the Sheriff of Graham County. The county
board has not authorized this suit and the County Attorney has
informed Mack that he is not to use county facilities, staff,
services or equipment in pursuit of the litigation. Mack has
retained private counsel to represent him.
The Court finds that there is no difference between Sheriff
Mack's personal and official capacities for purposes of the duties
imposed upon him by the Brady Act. The Act directs the CLEO as a
county agent to perform its statutory mandates. Mack is thus forced
to choose between violating his oath or violating the Act,
subjecting himself to possible sanctions. Mack has a sufficient
stake in the outcome of the proceedings to justify standing,
regardless of whether it is characterized as private or official
conduct. See Board of Education v. Allen, 392 U.S. 236, 88 S.Ct.
1923, 20 L.Ed.2d 1060 (1968) (plaintiffs' belief that statute
forced them to choose between following oath and statute supplied
personal stake necessary for standing).
The United States raises one final point-namely, its theory
that Arizona law does not authorize its sheriffs to sue or be sued.
Fed.R.Civ.P. 17(b) provides that the capacity to sue must be
determined by state law. Pursuant to statute, the office of sheriff
is named a county officer. A.R.S. section 11-401. The powers of the
county to sue and be sued "shall be exercised only by the board of
supervisors or by agents and officers acting under its authority
and authority of law." A.R.S. section 11-201. Mack lists several
early cases for the simple proposition that Arizona sheriffs
regularly sue and are sued. This is hardly dispositive as "capacity
to sue is not jurisdictional and can be waived." Gonzales v.
Arizona Public Service Co., 161 Ariz. 84, 87, 775 P.2d 1148, 1151
(App. 1989).
Thus far, it would appear that Arizona courts have not had an
opportunity to determine the extent of a sheriffs capacity to sue.
The Supreme Court of West Virginia, when faced with a similar
issue, ruled that "the capacity to sue is an important incident to
the duties of public officers and it is often necessary that such
an official be able to ensure that he [or she] is acting properly
by seeking court guidance." State ex rel. Manchin v. Lively, 170
W.Va. 672, 674, 295 S.E.2d 912, 915 (1982). That court cited with
approval the following language found in 67 C.J.S. Officers section
250 (1978): "public officers have capacity to sue commensurate with
their public trust or duties without express statutory authority."
Id. See also State ex rel Hoagland v. School Dist. No. 13, 116
Mont. 294, 151 P.2d 168 (1944) (implying right to sue into statute
defining county superintendent's duties). This Court concurs in
that reasoning.
The government's argument was recently rejected in McGee v.
United States, 849 F.Supp. 1147 (S.D.Miss. 1994). There, the
District Court for the Southern District of Mississippi stated:
The cases are clear that the appropriate body to bring an
action involving counties is the board of supervisors of such
county. However, that is not the situation before this Court.
Brady directs sheriffs (as chief law enforcement officers) to
ascertain if obtaining a gun is in violation of the law,
including checking whatever records are available.... This
directive is not to the county. It is not to the attorney
general. It is not any other state agency or to any federal
agency.
McGee, 849 F.Supp. at 1149. Nor, it might be added, will the
consequences of violating the Act be borne by anyone other than the
CLEO.
The Court finds the standing and jurisdiction arguments
presented by the United States to fall on all fronts. It is
irrefutable that the Act specifically imposes certain duties on a
particular category of individuals-the CLEOs. Sheriff Mack is a
CLEO for purposes of this statute. Should Sheriff Mack disregard
his statutory responsibilities, he would place himself at risk of
its criminal penalties. Thus, Sheriff Mack has standing to
challenge the statute on Fifth Amendment grounds because of the
potential sanctions he faces. Moreover, Sheriff Mack has standing
to raise a Tenth Amendment claim because of his position as the
state official to whom Congress has delegated the obligation to
enforce federal law.
Commerce Clause and Tenth Amendment
Count One of Mack's Amended Complaint alleges that Congress
has exceeded the scope of its powers under the Commerce Clause by
legislating the requirement that he perform a background check on
potential firearms purchasers. The flip side of this argument is
Count Two of Mack's Amended Complaint, which contends that the
Act's enforcement scheme infringes upon the state's sovereign
powers reserved to it by the Tenth Amendment. As the Supreme Court
noted, these inquiries go hand in hand. New York v. United States,
-- U.S. --, , 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992). "If a
power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that power to the
States; if a power is an attribute of state sovereignty reserved by
the Tenth Amendment, it is necessarily a power the Constitution has
not conferred on Congress." Id. "In the end, just as a cup may be
half empty or half full, it makes no difference whether one views
the question at issue in this case as one of ascertaining the
limits of the power delegated to the Federal Government under the
affirmative provisions of the Constitution or one of discerning the
core of sovereignty retained by the States under the Tenth
Amendment." Id, 112 S.Ct at 2419.
Turning first to Count One, legislation enacted under the
Commerce Clause has a "presumption of constitutionality," Usery v.
Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49
L.Ed.2d 752 (1976), and receives "a highly deferential" judicial
review. United States v. Edwards, 13 F.3d 291, 293 (9th Cir. 1993).
"A court may invalidate legislation enacted under the Commerce
Clause only if it is clear that there is no rational basis for a
congressional finding that the regulated activity affects
interstate commerce, or that there is no reasonable connection
between the regulatory means selected and the asserted ends." FERC
v. Mississippi 456 U.S. 742, 754, 102 S.Ct. 2126, 2134, 72 L.Ed.2d
532 (1982) (internal citations and quotations omitted).
Applying these principles to the facts at hand, it is clear
that the activity regulated by the Brady Act, the purchase of
handguns, affects interstate commerce. This is not even a debatable
question. See Huddleston v. United States, 415 U.S. 814, 833, 94
S.Ct. 1262, 1273, 39 L.Ed.2d 782 (1974) (Congress is permitted to
regulate intrastate redemption of firearms from pawnshops on the
basis that such transactions affect interstate commerce); Edwards,
13 F.3d at 293 (Gun Free School Zones Act, prohibiting possession
of firearms within 1,000 feet of a school, represents permissible
exercise of Congressional power); United States v. Evans, 928 F.2d
858 (9th Cir. 1991) (the violence created through the possession of
firearms adversely affects the national economy and therefore comes
within the scope of Congressional authority).
The second prong of the analysis requires the Court to
determine whether there is a rational connection between the
background check requirement and the regulation of the transfer of
handguns. The purpose of the investigation is to determine if a
potential purchaser is legally entitled to possess a firearm. 18
U.S.C. section 922(g). See also U.S. Const. art. I, section 8, cl.
18 (granting Congress the power "[t]o make all Laws which shall be
necessary and proper for carrying into Execution" its delegated
powers).
The issue is not, however, whether Congress possesses the raw
power to regulate the transfer of handguns. Clearly it does. The
thorny question is whether the Tenth Amendment limits the power of
Congress to regulate in the way it has chosen. The district court
for the District of Montana framed the inquiry as follows: "This
case turns on the proper relationship between the federal
government and the several states, and in particular, on the
constitutionality of federally imposed, unfunded mandates to the
states." Printz v. United States, 854 F.Supp. 1503, 1506-1507
(D.Mont. 1994). The Tenth Amendment confirms that the federal
government has fixed powers. U.S. Const. amend. X (the "powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people."). "[A]ll is retained which has not been surrendered."
New York, -- U.S. at --, 112 S.Ct. at 2418 (quoting United States
v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609
(1941)).
In New York v. United States, the Supreme Court reviewed the
history of the decisional law construing the delicate balance
struck between the federalist compromise and a state's authority.
The Supreme Court stated without hesitation that "[w]here a federal
interest is sufficiently strong to cause Congress to legislate, it
must do so directly; it may not conscript state governments as its
agents." Id., -- U.S. at --, 112 S.Ct. at 2429. Compare FERC v.
Mississippi, 456 U.S. at 762, 102 S.Ct. at 2139 (federal government
may enlist the judicial branch of state government to further
federal ends). The New York Court held that the federal government
could not force the state of New York to regulate nuclear waste in
a certain way because in doing so, Congress exceeded its Article I
powers. The statute offered state governments the choice of either
regulating pursuant to Congressional dictates or accepting
ownership of low level radioactive waste. Justice O'Connor, writing
for the majority, held the statute invalid under the Commerce
Clause and the Tenth Amendment because it "'commandeers the
legislative processes of the States by directly compelling them to
enact and enforce a federal regulatory program.' " New York, --
U.S. at --, 112 S.Ct. at 2428 (quoting Hodel v. Virginia Surface
Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288, 101 S.Ct.
2352, 2366, 69 L.Ed.2d 1 (1981)).
The parties present two very different views of the Brady Act.
The government maintains that the Act's provisions are
discretionary, cooperative, and clerical. The government goes so
far as to say that were Sheriff Mack to find in his discretion and
under the circumstances that a reasonable effort meant no
investigation whatsoever, that would be acceptable compliance.
[footnote 8] For his part, Mack interprets the Act to be a direct
command from Congress. Such a command would clearly involve the
type of government conduct found to be unconstitutional in New York
v. United States, -- U.S. at --, 112 S.Ct. at 2425.
Relying upon Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985),
the government first maintains that the Brady Act is a statute of
general applicability and thus does not intrude upon the special
preserve of state sovereignty. At issue in Garcia was whether
Congress had exceeded its powers by requiring the states to comply
with the Fair Labor Standards Act minimum wage and overtime
requirements. In that case, the Supreme Court found that the state
"face[d] nothing more than the same obligations that hundreds of
thousands of other employers, public as well as private, have to
meet." Garcia, 469 U.S. at 554, 105 S.Ct at 1019. Under Garcia, if
states object to complying with the FLSA, their recourse is to the
political process of state participation in federal government
action. [footnote 9] Id. at 556, 105 S.Ct. at 1020.
The government's efforts to characterize the Brady Act as a
law of general applicability are disingenuous. The specific
dictates imposed upon state law enforcement personnel comprises the
crux of this lawsuit. These duties are not generally applicable but
specially meted out to the CLEOs. Unlike the identical
responsibilities imposed upon government and private employers
under the FLSA, private entities have no corresponding duties under
the Brady Act.
Next, the government dismisses the holding in New York as one
affecting only those federal laws which attempt to compel a state
to legislate. Without doubt, the Supreme Court found the prospect
of compelled legislation to be constitutionally objectionable. The
reason for this principle, the Supreme Court explained, is that
"where the Federal Government compels States to regulate, the
accountability of both state and federal officials is diminished."
New York, -- U.S. at --, 112 S.Ct. at 2424. That loss of
accountability, the Court concluded, undermines the purpose of
federalism--to ensure that the interests of the citizens are
adequately represented. Id., 112 S.Ct. at 243132.
The government claims that the Brady Act does not usurp
accountability from the states because the Act does not require,
much less compel, the state legislature to do anything. FERC v.
Mississippi, 456 U.S. at 764, 102 S.Ct. at 2140 (Public Utility
Regulatory Policies Act of 1978 held constitutional because did not
contain a federal command to promulgate and enforce regulations but
merely required the states to consider federal standards); Hodel,
452 U.S. at 288, 101 S.Ct. at 2366 (Supreme Court upheld Surface
Mining Control and Reclamation Act of 1977 because "the States are
not compelled to enforce the steep-slope standards, to expend any
state funds, or to participate in the federal regulatory program in
any manner whatsoever.").
True, the Brady Act does not require the state to legislate in
order to enforce its provisions. In this respect, however, it is
more like the "take title" section of the unconstitutional statute
in New York which essentially operated upon default. This provision
was found to be constitutionally defective even though no
affirmative action was demanded of the state. In this case, the
state is forced to expend time and resources toward implementation
of the Act, even though legislation is not mandated. [footnote 10]
Finally, the government claims that the Tenth Amendment is not
violated by a congressional order that a state implement a federal
directive where doing so is exactly the type of activity the state
ordinarily engages in. The government offers Testa v. Katt, 330
U.S. 386, 67 S.Ct 810, 91 L.Ed. 967 (1947), in support of this
proposition. Testa involved the state of Rhode Island's refusal to
permit lawsuits to be filed in its courts under federal price
control legislation which conferred dual jurisdiction upon state
and federal courts. The Supreme Court held that Rhode Island could
not refuse jurisdiction over federal claims to be adjudicated in
its courts; Testa, 330 U.S. at 394, 67 S.Ct. at 814. In evaluating
the applicability of Testa, the New York Court declared that Testa
was grounded upon the Supremacy Clause rather than the Tenth
Amendment. New York, -- U.S. at -- - --, 112 S.Ct. at 2429-30.
Accord FERC v. Mississippi, supra (Mississippi Public Service
Commission had jurisdiction to entertain claims arising out of
Public Utility Regulatory Policies Act of 1978). Testa is not
controlling here.
In summary, the Brady Act's provision mandating that state law
enforcement officials perform a background investigation exceeds
Congressional powers under the Commerce Clause, thereby violating
the Tenth Amendment.
Fifth Amendment Vagueness Claim
Mack also challenges the Brady Act as unconstitutionally vague
in violation of the Fifth Amendment Due Process Clause because it
fails to make explicit, under threat of criminal punishment, the
reasonable effort required when determining whether receipt or
possession of a handgun would be in violation of the law. A statute
is unconstitutionally vague if it threatens sanctions without
giving fair warning of the conduct that is proscribed or demanded.
Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294,
2298-2300, 33 L.Ed.2d 222(1972); "'[T]he void-for-vagueness
doctrine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand
what conduct is prohibited.'" United States v. Dischner, 974 F.2d
1502, 1510 (9th Cir. 1992) (quoting Kolender v. Lawson, 461 U.S.
352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)), cert.
denied, -- U.S. --, 113 S.Ct 1290, 122 L.Ed.2d 682 (1993).
The United States maintains that Sheriff Mack lacks standing
to pursue this claim in light of the Office of Legal Counsel's
opinion letter proclaiming that the criminal sanctions of the Act
were not meant to apply to CLEOs. Because the protection afforded
Sheriff Mack by the opinion letter is illusory, [footnote 11]
Sheriff Mack is entitled to have the Court decide the merits of
this claim. Accordingly, the Court concludes that the mandatory
provisions of the statute must fall for vagueness.
The Act requires that Sheriff Mack make a "reasonable effort"
to perform a background check within five business days, including
research in a national system of records designated by the Attorney
General as well as any "available" state and local records. 18
U.S.C. section 922(s)(2). Reasonable effort is not defined by
statute.
The United States offers one definition to complete the void.
It insists that Sheriff Mack is not under a mandatory obligation to
determine the legality of handgun transfers. The government's
interpretation of the enforcement provisions merely directs the
CLEO to determine whether, in light of the resources available in
the specific jurisdiction, it would be reasonable to conduct a
background check after notice of the proposed sale by a licensed
gun seller. The government claims the Act would allow ever changing
obligations, as appropriate, in light of individual circumstances.
At various times and through various agencies, the government has
posited that criminal sanctions do not apply to CLEOs or that
criminal sanctions may apply, but only if the CLEO fails to expend
"minimal efforts" in pursuit of his or her investigatory duties.
The government's position is untenable. When the language of
a criminal statute is clear, as is true of 18 U.S.C. section
922(s), the executive branch is not at liberty to amend that
statute by fiat. Accordingly, the Court finds that Sheriff Mack
faces criminal sanctions should he violate the Brady Act's
mandatory provisions, but the statutory duty imposed upon him as
the CLEO of Graham County is imprecise and indefinite. This runs
afoul of the Fifth Amendment Due Process Clause.
Thirteenth Amendment Challenge
Mack next contests the Brady Act on the ground that its
enforcement provisions constitute involuntary servitude prohibited
by the Thirteenth Amendment. Involuntary servitude in violation of
the Thirteenth Amendment "occurs when an individual coerces another
into ... service by improper or wrongful conduct that is intended
to cause, and does cause, the other person to believe that he or
she has no alternative but to perform the labor." Brogan v. San
Mateo County, 901 F.2d 762, 764 (9th Cir. 1990) (quoting United
States v. Mussry, 726 F.2d 1448, 1453 (9th Cir.), cert. denied 469
U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984)).
In United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751,
101 L.Ed.2d 788 (1988), the Supreme Court found that a conviction
for violating a statute enacted to enforce the Thirteenth Amendment
required proof that the alleged victims were "forced to work for
the defendant by the use or threat of physical restraint or
physical injury" or by law, rather than merely by psychological
coercion. Kozminski, 487 U.S. at 952, 108 S.Ct. at 2764. Where as
here a person is free to refuse to work without incurring legal
sanctions, the Thirteenth Amendment is not violated, even if the
choice is a painful one. Mack need only quit his job to be free of
the duties imposed upon him by the Act. Under these circumstances,
the Thirteenth Amendment is not implicated. Id. at 950, 108 S.Ct.
at 2763 (quoting United States v. Shackney, 333 F.2d 475, 487 (2d
Cir. 1964)).
Severability of Offending Provisions
A statute that is partially unconstitutional may require the
Court to invalidate the statute in its entirety. Mack maintains
that the unconstitutional provisions of section 922(s) are "the
heart and foundation of that entire subsection" and the illegality
of the part infects the legality of the whole. "Unless it is
evident that" Congress would not have enacted the constitutional
provisions in a statute independently of any unconstitutional ones,
"the invalid part may be dropped if what is left is fully operative
as a law." New York, -- U.S. at --, 112 S.Ct. at 2434 (citations
omitted). Mack interprets both the statutory text and its
legislative history to mean that the statute would not have been
enacted absent the enforcement duties placed upon the CLEOs. Thus,
he claims, the subsections under review are not severable and if
even one subsection is unconstitutional the entire act must be
rejected.
The Gun Control Act, of which the Brady Act is a part, does in
fact contain a severability clause. Section 928 reads: "If any
provision of this chapter ... is held invalid, the remainder of the
chapter ... shall not be affected thereby." 18 U.S.C. section 928.
If a statute includes a severability clause, there is a presumption
that any of its provisions found to be unconstitutional are
severable. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107
S.Ct. 1476, 1481, 94 L.Ed.2d 661 (1987). See Board of Natural
Resources v. Brown, 992 F.2d 937, 948 (9th Cir. 1993) (the absence
of a severability clause "does suggest an intent to have all
components operate together or not at all.").
The Supreme Court in Alaska Airlines expressed some doubt as
to whether the severability clause contained within the Federal
Aviation Act of 1958 applied to the Airline Deregulation Act of
1978, the provision under review. Alaska Airlines, 480 U.S. at 686
n. 8, 107 S.Ct. at 1481 n. 8. As the Supreme Court explained, the
Airline Deregulation Act did not truly amend the Federal Aviation
Act, but created a whole new program. Id. That concern does not
apply here. In contrast, the Brady Act does amend the underlying
Gun Control Act. Rather than create an entire new program, the
Brady Act simply provides a means for implementing the Gun Control
Act's prohibition against sales to certain classes of buyers.
Even without applying the severability clause, the offending
provision could be separated without doing damage to the entire
Brady Act. An invalid provision is severable if the balance of the
legislation is capable of functioning independently from the
invalid provision, and the statute functions, in the absence of the
objectionable provision, "in a manner consistent with the intent of
Congress." Id. at 684-85, 107 S.Ct. at 1479-81 (emphasis in
original).
Accurately gauging the most vulnerable aspect of the Brady
Act, the government is hopeful that the Court will limit its
redaction to section 922(s)(2), the provision requiring local law
enforcement officials to conduct a reasonable background search.
[footnote 12] This proposal would leave intact the five-day waiting
period, the information and notification duties imposed on gun
importers, dealers, and manufacturers, and the option for local
officials to conduct a background check.
When considered absent the offending subsection, the statute
loses none of its function. The test is whether the elimination
"alters the substantive reach of the statute and leaves completely
unchanged its basic operation." Board of Natural Resources, 992
F.2d at 948 (citations omitted). Irrefutably the balance of the
interim provisions can function independent of the alleged invalid
provision. Gun sales can be postponed for five days and sworn
statements can be forwarded to CLEOs, regardless of whether CLEOs
perform any of the three acts described in the challenged
provisions.
The Court must next decide whether the offending portion is
necessary for the remainder of the Act to function "in a manner
consistent with the intent of Congress." The presence of the
severability clause is again evidence that Congress intended for
the statute to have continued viability, even though partially
invalidated.
Mack disagrees, and argues that the bill was a product of a
negotiated compromise which Congress would not have adopted but for
its many parts. For instance, Mack refers the Court to the
destruction requirement, which prevents the inadvertent creation of
a registration system, to have been critical to the successful
passage of the bill. At bottom, Mack has not overcome the
presumption in favor of severability and the Court can safely
excise the offending provision.
By invalidating the mandatory background check provision, the
requirements of the other challenged provisions become optional.
For instance, 18 U.S.C. section 922(s)(6)(C), which requires the
CLEO to provide reasons to the denied purchaser for that
determination, becomes elective depending on whether the state
chooses to perform background checks. Similarly, 18 U.S.C. section
922(s)(6)(B), which orders the CLEO to destroy the sworn statement
within 20 days of the date of the transfer again will depend upon
the state's voluntary decision to perform the background check.
When viewed accordingly, the remaining provisions do not commandeer
the states in any way and are therefore constitutional.
ORDER
The Court finds that in enacting section 18 U.S.C. 922(s)(2),
Congress exceeded its authority under Article 1, section 8 of the
United States Constitution, thereby impermissibly encroaching upon
the powers retained by the states pursuant to the Tenth Amendment.
The Court further finds that the provision, in conjunction with the
criminal sanctions its violation would engender, is
unconstitutionally vague under the Fifth Amendment of the United
States Constitution.
Accordingly, IT IS HEREBY ORDERED that plaintiff Sheriff
Richard Mack's complaint for declaratory and injunctive relief is
GRANTED IN PART. The Clerk of the Court is directed to enter a
judgment declaring 18 U.S.C. section 922(s)(2) to be
unconstitutional. IT IS FURTHER ORDERED that defendant United
States of America and its agents are PERMANENTLY ENJOINED from
further enforcing 18 U.S.C. section 922(s)(2).
All other provisions under review are deemed severable from
the offending subsection and are found not to violate the United
States Constitution.
IT IS FURTHER ORDERED that all pending motions are deemed MOOT
by virtue of this order and this case is DISMISSED.
FOOTNOTES
1. Several other courts have had an opportunity to review this
matter. See Printz v. United States, 854 F.Supp. 1503 (D.Mont.
1994) (section 922(s)(2) declared unconstitutional); McGee v.
United States, 849 F.Supp. 1147 (S.D.Miss. 1994) (section 922(s)(2)
declared unconstitutional but injunctive relief limited to sole
plaintiff); Koog v. United States, 852 F.Supp. 1376 (W.D.Tex. 1994)
(constitutionality of the Act upheld).
2. In addition to his statutory duties, Sheriff Mack is bound to
obey the laws of the United States by his oath of office.
3. As the Supreme Court has explained:
First, always, is the question whether Congress has directly spoken
to the precise question at issue. If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress.... if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the
statute. Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct.
2778. 2781-82, 81 L.Ed.2d 694 (1984).
4. Again, CLEOs are specifically exempted from civil liability. 18
U.S.C. section 922(s)(7). It is apparent from this exemption that
Congress considered the extent to which it wished to hold a CLEO
responsible for enforcement. It is difficult to conclude that
Congress meant to preclude criminal liability simply because civil
liability has been removed.
5. Assuming for the sake of argument that the term lacks clarity,
several interlocking principles guide this Court's construction to
the identical result. First, a statute must be construed, if
fairly possible, to avoid constitutional problems. Communication
Workers of America v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641,
2657, 101 L.Ed.2d 634 (1988). If ambiguous, the more lenient
construction in favor of a criminal defendant is required. United
States v. Baxley, 982 F.2d 1265, 1270 (9th Cir. 1992). It is only
if the language is unclear that the Court need refer to legislative
history as an aid to statutory interpretation. Blum v. Stenson,
465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984).
6. At oral argument, counsel for the government cited 28 C.F.R.
section 0.25 for the proposition that CLEOs would be sheltered from
subsequent prosecutions based on the opinion letter even if the
interpretation were later to change. The regulation, however,
offers Sheriff Mack no such reassurances.
7. section 11-441(A) defines a sheriff's powers and duties provides
in relevant part as follows:
A. The sheriff shall:
1. Preserve the peace.
2. Arrest and take before the nearest magistrate for
examination all persons who attempt to commit or who have
committed a public offense.
3. Prevent and suppress all affrays, breaches of the peace,
riots and insurrections which may come to the knowledge of the
sheriff.
4. Attend all courts, except justice and police courts, when
an element of danger is anticipated and attendance is
requested by the presiding judge, and obey lawful orders and
directions issued by the judge.
5. Take charge of and keep the county jail, including a county
jail under the jurisdiction of a county jail district, and the
prisoners therein.
6. Endorse upon all process and notices the year, month, day,
hour and minute of reception, and issue to the person
delivering it, on payment of fees, a certificate showing the
names of the parties, title of paper and time of reception.
7. Serve process and notices in the manner prescribed by
law....
8. The government claims that the mandated actions are de minimis
and therefore escape constitutional review. This position was
accepted by the district court in Koog v. United States, 852
F.Supp. 1376 (W.D.Tex. 1994).
9. Prior to Garcia, the FLSA was not applicable to the states when
they were performing traditional governmental functions. National
League of Cities v. Usery, 426 U.S. 833. 96 S.Ct. 2465, 49 L.Ed.2d
245 (1976). The Garcia Court rejected National League of Cities's
"traditional government functions" test. Garcia, 469 U.S. at 55657,
105 S.Ct. at 1020-21. Thus, the government's argument to the
contrary herein does not merit further comment.
10. For instance, the CLEO must address the reasons for
ineligibility and destroy the sworn statement.
11. See supra note 6 and accompanying text.
12. Mack's constitutional challenge encompasses three of the
interim provisions of the Act, namely, the requirements that the
CLEO conduct a background check, destroy sworn statements of
purchasers after 20 days, and inform rejected purchasers of the
reasons for the denial.